Army may lose right to stop charges
By Joshua Rozenberg, Legal Editor
(Filed: 12/06/2004)

The Armed Forces may lose the right to block criminal charges against troops following the case of a soldier accused of shooting dead an Iraqi civilian during an operation.

The Government will come under pressure to decide whether a change in the law is needed once the outcome of the case is known.

Lord Goldsmith, the Attorney General, has been concerned about the powers of military officers to dismiss charges before a case comes to court.

Yesterday, a solicitor for the families of 20 Iraqis, who he says were killed or injured by British troops, repeated his call for an independent inquiry. The Ministry of Defence admitted that the number of investigations involving British troops in Iraq was almost twice as many as Tony Blair had told MPs last month.

The case that has exposed apparent shortcomings in military law involves a soldier formerly serving in Iraq who was accused of unlawfully killing an Iraqi in an arrest.

After investigations by the Royal Military Police, the soldier's commanding officer decided he was not to blame for the killing and dismissed the charges against him. As a result, the case cannot be tried by court martial.

However, the Army Prosecuting Authority considered the case required further consideration and referred it to the Attorney General.

Since any British citizen can be tried in Britain for a murder or manslaughter committed abroad, it would still be possible for the soldier to stand trial at a Crown Court.

Lord Goldsmith announced last month that, after further inquiries by Scotland Yard, the Crown Prosecution Service would decide whether the soldier should be prosecuted.

Any decision to bring charges would cast doubt on the power of commanding officers to block a court martial in such cases.

It emerged this week that MPs were misinformed about the number of civilian deaths, injuries or cases of alleged ill-treatment in Iraq being investigated by service police. Adam Ingram, the Defence Minister, said early last month that there were 33 cases, a figure subsequently confirmed by the Prime Minister.

On Tuesday, Mr Ingram said the correct figure had been 61 cases. This has since risen to 75.

Yesterday, Phil Shiner, the solicitor acting for alleged Iraqi victims of British troops, said: "Without an independent inquiry, we are not going to know how many soldiers were involved in these alleged incidents and how far up the chain of command it goes.

"There must be no link between those inquiring and those being inquired of. A military investigation obviously is not independent in that way," he said on Radio 4. "What is needed here is a High Court judge to be appointed to look at all these deaths together."

Last month Mr Shiner was granted permission by a High Court judge to bring a legal challenge against the MoD over claims that Iraqis had been killed unlawfully.

A hearing has been fixed for the end of next month. The court will have to decide whether the Human Rights Act required the Government to investigate such killings.

The ministry is expected to argue that the Act does not apply because southern Iraq is not under British jurisdiction.

Remember - this article is written from a legal perspective. The start of a long & complicated discussion at high level methinks.

In this day and age, we have people (lawyers and such like scum) who have so much to gain from bringing cases like these to our courts in the name of justice.

I think that none of these persons have ever served in a conflict/trouble zone where the stresses the soldier/s under are something they will never be able to comprehend.

I hate to rattle on about it, but PC is beginning to strike at everything we do now. I can see it in the future where soldiers will think twice about firing in case they are prosecuted and this will lead to a few more seconds added and then its too late. A dead soldier or possibly a few dead soldiers.

However there are a few incidents which warrant investigation but this number will no doubt increase when the Iraqis get wind of a possible windfall from a PC British government. Just look at the fiasco over the Kenyan women crying rape

dont you ever ask yourself , why the f**k do we bother , i cannot believe after an RMP investigation the ARMY prosecuting authority is going to pursue this further , don't tell me theres people employed by the government specifically to prosecute squaddies , well i hope there all proud of themselves and they can all sleep well in there beds in the u.k. while good men and women try and do a good job in spite of them all .

The Army Prosecuting Authority isn't anti-Army - it's part of it. The APA is made up of ALS officers who do prosecutions as a tour like any other. I happen to know some of them socially, and several have just been posted to entirely different legal jobs. In other words, they are the same lawyers who help with divorces etc. in BFG.

APA acts independently from the chain of command. They consider whether a prosecution should be instituted, and then prosecute the case at trial.
Many cases passed to them by the RMP do not go to Court Martial. Most prosecutions are for serious assaults, drugs, fraud and so on. They have been actively involved in the prosecution of military personnel involved in child porn. I cannot imagine anyone would not want 'bad apples' dealt with properly. Some cases are referred for legal opinion (like the one referred to in this story), because COs are not legally qualified. Clearly such opinion has to be unbiased, otherwise it allows the PC brigade to accuse the military of whitewashing events - and that's Geoff Hoon's job.

The advantage of having the APA is that as members of the Army they have experience of military life, including operations, and are much more likely to understand cases involving soldiers than, say, the CPS. APA should certainly not be confused with bottom-feeders like Phil Shiner, who is financially/politically motivated.

This situation has been stirred up by those with political and PC agendas, who seek to undermine the armed forces in any way they can. Unfortunately Bliar's government, none of whom have served and none of whom appear to have any national pride, encourages this sort of behaviour.

fair one poppy , but as VB points out they are almost definetley going to be some hand wringing leftie. At least this way the prosecutor is a seving officer and therefore has a greater understanding of the pressures of conflict etc.

If there are grounds for prosecution for war crimes, then no doubt the appropriate charges will be brought before the appropriate court.

However, it is worth noting that Phil Shiner has people drumming up business in Iraq. The cases he is dealing with are not about war crimes or abuse (with one possible exception, and that's under RMP investigation anyway), but about people killed during the conflict and its aftermath. The promise of getting revenge and compensation must seem compelling for the type of poor Iraqis Shiner and his gang are preying on. Make no mistake, Shiner is exploiting these people for his own ends.

I heard Shiner interviewed on Radio 4 yesterday. The only 'evidence' he has is witness statements from family and friends of the alleged victims, and a few letters from the military offering compensation but not admitting liability. He will have to produce much more substantive evidence to prove any case in a UK Court. What is worrying is that some lunatic judge (remember- the Lord Chancellor is one of Tony's biggest cronies) is allowing him to proceed, and no-one in government is acting to stop our forces being undermined.

It has been ruled that peacekeeping operations are not combat and so soliders cannot claim crown immunity for shooting to kill.

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Sounds like a classic ruling from someone who has not strayed far from Lincolns Inn.

Combat is synonymous with war, so what will happen to the War on Terror?

Should not soldiers have a right to be protected against such claims when on legitimate operations? It seems, however, that the goalposts have moved, so should we now withdraw our soldiers to protect them, if they are no longer allowed to protect themselves?

It has been ruled that peacekeeping operations are not combat and so soliders cannot claim crown immunity for shooting to kill.

I suspect this may make things much harder for our people in Iraq.

Trotsky

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I may be totally off the mark here, but I have always been taught that I in a situation where I need to use my personal or crew served weapon in anger, I do so 'to kill' not 'to injure'.

Not wanting to take anything away from VB's excellent posts above, but he is correct in his assertion about the APA and their place in the Armed Forces. We (the Armed Forces) must always be seen to be 'whiter than white' in our dealings with the world at large - indeed, we are one of the very few orgainsations in the UK that can accurately claim to be self-policing within the spirit and purpose of the law.

Unfortunately, there will always be people who believe that the Army is full of trigger happy murderers; whose exploits are readily covered up by the chain of command. As all serving/ex members will know, nothing could be further from the truth. Sometimes, integrity and honesty are the only weapons we possess, and their sharp edge must not be dulled by misuse.

I cannot accept that this is purely a 'PC' issue - the simple fact is that people's awareness of their 'rights' has increased over the past years, and that is no bad thing! However, as we can see with the ongoing SIB investigation in Kenya (into allegations of rape), as soon as an investigation is launched, literally hundreds of individuals appear from out the woodwork with such allegations - nearly all of them entirely fabricated. The process may well turn up a (very) few legitimate criminals, however, and this is why our processes must be maintained, along with our essential integrity.